Slide 1NegligenceNegligenceDuty of CareSlide 5Palsgraf v. Long Island cont’dPalsgraf v. Long Island cont’dHernandez v. Arizona Board of RegentsForeseeabilityDuty of care - CircumstancesSpecial Duties-LandownersSpecial Duty - LandownersExample - SolutionDuty of LandownersExample - SolutionExample - SolutionSpecial Duties – Professional DutiesSpecial Duties - EmployersSlide 19Breach of DutyExample-Res Ipsa Loquitor (G)Example - SolutionNEGLIGENCE AND STRICT LIABILITYChapter 6 part 1 (Negligence, Duty, Breach)1/13/19 Dr. Gerlinde Berger-Walliser1Negligence•The “unintentional tort”•Who is liable in the following case?•http://www.wfsb.com/story/19749850/bull-strikes-woman-at-berlin-fairgroundsNegligence•To win a case the plaintiff must prove:•Defendant has a Duty of due care to the plaintiff•Breach of duty•Proximate cause•Harm (damage or injury)Duty of Care•What duty?•To behave as a reasonable person would under the circumstances•No drinking and driving•No texting and driving•Scatter sand on icy driveway to protect visitors •How far does the duty go?Palsgraf v. Long Island, Court of Appeals of New York, 1928 http://www.courts.state.ny.us/reporter/archives/palsgraf_lirr.htm •“Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place….[A] man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car… reached forward to help […] him in, and another guard on the platform pushed him from behind.Palsgraf v. Long Island cont’dIn this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.”•Did the railroad breach a duty of care? What is the standard?Palsgraf v. Long Island cont’dThe Court Decision:“The diversity of interests emphasizes the futility of the effort to build the plaintiff's right upon the basis of a wrong to some one else. . . . Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.”= The duty of care is owed to reasonably foreseeable plaintiffs.Hernandez v. Arizona Board of RegentsA fraternity held a party where a minor consumed alcohol. The minor, leaving the party drunk, drove his car into the plaintiff causing injuries.•Did the fraternity owe a duty of care to the plaintiff?•Apply the rule from Palsgraf v. Long Island.•Social host lawsForeseeability•Duty: is owed to reasonably foreseeable Plaintiffs•Breach of Duty: includes guarding against reasonably foreseeable dangers•Causation: proximate cause applies when injuries could have reasonably been foreseen as a result of the negligent act or omission•Damages: Include reasonably foreseeable future effects of the injuriesDuty of care - Circumstances•What Duty? – to act as a reasonably prudent person under all the circumstances (ordinary care)•THE CIRCUMSTANCES MATTER !Special Duties-Landowners•Owners and possessors (tenants) of land have a duty to:•___________________, •___________________Special Duty - LandownersElizabeth Culli slipped and fell on a pool of “clearish” slippery substance at defendant’s 24-hour self serve gas station and suffered a compound fracture of her ankle. When she sued, the defendant claimed to have not had any knowledge of the existence of the dangerous condition.•Did the owner of the gas station have a duty of care towards Culli? What can you expect from a reasonable person under the given circumstances?•May a property owner avoid liability by claiming lack of knowledge?Example - SolutionDuty of Landowners•Duty to Trespassers – not to injure intentionally.•Duty to Licensees – to warn of known, but hidden dangerous conditions licensees are unlikely to discover for themselves.•Duty to Invitees – to exercise reasonable care to protect invitees against dangerous conditions possessor should know of but invitees are unlikely to discover (constructive knowledge). And if the dangerous condition:•existed for a sufficient amount of time so that it would have been discovered, or•was part of a pattern of conduct or a recurring incidentExample - Solution•What does Culli need to prove at trial?Example - SolutionSpecial Duties – Professional Duties•Professionals: Must act as a reasonably prudent professional (requisite skill, knowledge and expertise)•Doctors must act with the requisite care, skill, knowledge and expertise of other doctors in a similar practice in the same geographical area. •Lawyers must act with the requisite care, skill, knowledge and expertise of other lawyers •Engineers must act . . . .as other engineers •Accountants must act . . . as other accountants, etc.•Professional negligence claims (malpractice) require expert testimony as to what constitutes the standard of care AND whether or not the standard has been breached – not the jury!Special Duties - Employers•A taxi driver took a passenger to the desired location and received the correct fare. However, the passenger did not tip the driver. The taxi driver then assaulted the passenger with an iron bar and stole his pants. The taxi driver was later convicted in state court of criminal assault. The customer sued the taxi driver's employer for negligence. Any chance he might win ?•What could be the duty the taxi driver’s employee has towards the client? What would the plaintiff have to prove in court?Breach of Duty•A defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances.•may be shown by comparison of the costs of being careful versus the risk of harm – weighing the considerations to determine what the “reasonably prudent person” would have done under the circumstances - Jury’s decision•may be shown by failure to meet industry standards, custom or practice.•may be shown by proof of violation of statute (negligence per se)Breach of Duty•May be shown by “res ipsa loquitor” – the thing speaks for itself•the incident